Suppose you want to hire a mediator to help you resolve a conflict that you’re having with an individual or a company, but for various reasons, meeting face-to-face would be difficult. That’s where online mediation comes in.
The definition of online mediation is often as contextual as the conflict it attempts to resolve. Mediation is often thought of as the last step to adjudicate disputes. Mediation is a negotiation between two or more parties facilitated by an agreed-upon third party. Skilled third-party mediators can lower the emotional temperature in a negotiation, foster more effective communication, help uncover less obvious interests, offer face-saving possibilities for movement, and suggest solutions that the parties might have overlooked.
But perhaps you and the other party are located in different geographic areas. Maybe your dispute originated in an online transaction, and you’ve never even met. Or perhaps one of you feels threatened or intimidated by the other and is reluctant to meet in person. In the late 1990s, various start-ups began offering e-mediation or online mediation services to organizations and the general public.
The companies developed a roster of trained online mediators who they would assign to facilitate online dispute resolution, primarily through e-mail. This service is now offered across the globe, both by service providers and increasingly by individual professional mediators, writes Noam Ebner in a chapter in Online Dispute Resolution: Theory and Practice (Eleven International Publishing, 2012).
Though companies often use online mediation to resolve high-volume, long-distance conflicts (such as disputes between eBay customers), the range of disputes being mediated online has expanded to include workplace and family conflicts involving people who live in the same area.
The “platform” that mediators and service providers use varies, but the process is generally conducted via e-mail and telephone, while video conferencing and real-time chats are less commonly used. Parties exchange documents via e-mail, and the mediator guides the process.
In one study, mediators reported using a more directive, problem-solving approach in e-mediations than in face-to-face talks as a result of their attempts to maintain the momentum of long-distance talks.
Early studies of online mediation have found it to be an effective means of resolving disputes, Ebner writes. It offers convenience, allowing parties to participate when they have the time. The slower pace of e-mail talks (relative to real-time conversations) allows mediators to carefully craft their responses and strategy rather than needing to react in the moment to disputants’ statements. In addition, e-mail talks can level the playing field between disputants who tend to naturally dominate discussions and those who are more reserved.
Disputants who engage in talks primarily via e-mail will miss out on the cues they would receive from body language, facial expressions, and other in-person signals. Long-distance talks are prone to misunderstandings and also lack the rapport and warmth of face-to-face talks.
Parties may be tempted to “flame” each other (sending hostile or insulting messages) on e-mail or abandon the process entirely when frustrated. Finally, given that disputants often choose local mediators via word of mouth, they may be less trusting of mediators whom they choose somewhat arbitrarily online.
What Makes One Good at Online Mediation?
Of course, serious online mediation training and substantive expertise are critical, as a keen analytic skill. But according to a survey by Northwestern University law professor Stephen Goldberg, veteran mediators believe that establishing rapport is more important to effective online mediation than employing specific meditation techniques and tactics.
To gain parties’ trust and confidence, rapport must be genuine: “You can’t fake it,” one respondent said. Before people are willing to settle, they must feel that their interests are truly understood. Only then can a mediator reframe problems and float creative solutions.
Goldberg’s respondents could report only their own perceptions about why they succeed, of course. A detached observer or the parties themselves might have very different explanations. Indeed, one of the tenets of online mediation practice is to work subtly so that parties leave feeling as if they have reached accord largely on their own, a strategy that is meant to deepen their commitment to honor the agreement.
In an earlier study by mediator Peter Adler, his colleagues explained their success by discussing “the breakdowns, breakthroughs, and the windows of opportunities lost or found.” By contrast, participants in the same cases remembered the mediators only as “opening the room, making coffee, and getting everyone introduced.”
This research offers two lessons for negotiators—including those who must resolve disputes and make deals without the help of a third party. One is the importance of relationship building, especially in contentious situations. Some measure of trust is required before people will open up and reveal their true interests. The other is that a hallmark of an artful process is that others do not feel maneuvered or manipulated.
How has technology helped your online mediation skills? We’d love to hear from you in the comments.
Adapted from “Using E-Mediation to Resolve Disputes,” first published in the March 2013 issue of the Negotiation Briefings newsletter.
Originally published in 2015.
I work for an ODR company, and the traction that we are seeing for our mediation products (consumer, commercial, and divorce) would suggest that individuals are, in fact, very happy to use online mediation products in lieu or traditional mediation. The last paragraphs in this post mentions studies that would suggest otherwise: would it be possible for you to share links / references to said studies? Thank you very much.
I would further my fellow commentors questions and critque. I run a ODR service based out of Ireland (we also work internationally)and we see fantastic results through the use of ODR, however in the main we would use secure online video conferencing not email systems. I would also request that these articles mentioned that throw a possibly negative light on this innovative area be refenced please.
I’m a volunteer mediator and I’m interested in learning more about online mediation. Can anyone suggest some resources to get started?
Hi Pila – There are a number of great resources to learn about ODR and online mediation. A good starting point is to watch this interview with the founder of online mediation Professor Ethan Katsh. Ethan ran the first pilot online mediation programme for EBay. IN the first 2 weeks they handled something like 150 online mediations. Today EBAy resolve 60million dispute every year using their online dispute resolution system. (only a small number of those require the intervention of a mediator, nevertheless it gives you a whole new perspective. You can watch the interview on The Evolution of Online Mediation
If you have time it’s also worth watching the interview with Colin Rule. Colin designed and implemented the system that conducted these mediations for EBAY and now runs a silicon valley start up called Modria. He’s effectively building the operating system for online dispute resolution, he’s a great guy and passionate about online mediation. His interview is here: The Operating System for Online Mediation There are about half a dozen other interviews with leading lights and innovators in the field of ODR and justice from around the world on Mediator Academy
Another useful resource is http://odr.info which contains posts and academic papers on the subject of ODR. This was setup by Professor Katsh.
ODR is certainly flavour of the month in the UK. About 18 months ago the Judiciary set up a think tank to look at the feasibility of introducing online courts for claims within a certain threshold (approx £25K). The findings of the report were published about a month ago and it seems to be full steam ahead.
The author, Professor Richard Susskind looked at other systems around the world, most notably in British Columbia where they are piloting the concept of online courts for condominium disputes. I’m sure the author is familiar with the research carried out by Professor Ethan Katsh at MIT and the earlier studies done with Ebay. Bay are now resolving something in the region of 60million disputes every year using an online platform.
There are a series of interviews with Professor Katsh, Susskind and also Colin Rule founder of Modria (a silicon valley start up who are building ODR platforms for the future). They’re incredibly informative and worth watching if only just to understand the evolution of ODR and the future trends. Here’s a link to the interview with Professor Susskind where he talks about the need for innovating our justice system and why Online Courts and Online Dispute Resolution are on the horizon in the UK The chair of the British Columbia civil resolution tribunal is also interviewed and that’s an eye opener.
Hi folks- just saw the good comments here – and the good questions! The research I cited certainly did not come out and say that ODR does not or should not work – all of us who have managed such processes know its power and capacity. However, there is a great deal of research suggesting that any communication process taking place at a distance through online communication technology faces challenges inherent to the particular medium being used. For an initial bibliography on this, which a couple of you requested, check out the original article that this piece discussed (thank you, Keith!) which you can read at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2161451 – the references there will easil get you started. For more on this topic – such as particular challenges that challenge parties to negotiation or mediation conducted through asynchronous text, or mediators working through videoconferencing – check out the articles I’ve put up at http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=425153 . Enjoy, I hope these help – and of course I’d love to hear any thoughts people have. Best – Noam
Good brief look at online mediation options, thank you for writing! I think the analysis is somewhat incomplete though. I work for a research and negotiation firm, and our online mediation tools go far beyond simply emailing and video chat. The forum of the internet introduces great efficiencies by eliminating the expense of travel and facilities, and our software allows negotiators to eliminate the posture and bluster inherent to many face to face negotiations by allowing them to safely offer their best number without revealing it to the other side. Feel free to check it out hereL http://firstcourt.com/1hroverview/. This field is evolving rapidly, and viewing it as only mediation via email is no longer an accurate understanding of the industry.
I have been in the mediation field for 25 years now and about 11 years ago, we created our own ODR platform for use on our mediation programs. From then up until about 2018 I found that many of our clients were interested in the idea of online mediation, but in actuality preferred to either attend in person or via phone. I administered multiple ODR pilots with large claims orgs and even users in those pilots would push to attend the negotiations via phone instead of being on screen. I found it to be a curiosity and of course a frustration, having personally sunk a great deal of resources into our new webcam platform. I expect however that things will change overall now that we have been submerged in online meetings as a result of Covid. I am curious to see what things will look like after we return to normal.